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March 8, 1974

The CITY OF NEW YORK et al., Defendants. GETTY OIL CO. (Eastern Operations), INC., et al., Plaintiffs, v. The CITY OF NEW YORK et al., Defendants

Stewart, District Judge.

The opinion of the court was delivered by: STEWART

STEWART, District Judge:

Plaintiffs have moved for a summary judgment on the ground that the Federal Regulation of Fuels and Fuel Additives, 38 Fed. Reg. 33734 (Dec. 6, 1973) (hereinafter Dec. 6, 1973 Regulations) has preempted Sections 1403.2-13.11 and 1403.2-13.12 of the Administrative Code of the City, which prescribe the maximum lead content and volatility limits of regular and premium grade gasoline sold in New York City. The Dec. 6, 1973 Regulations, promulgated by the Administrator for the Federal Environmental Protection Agency (FEPA) (hereinafter Federal Administrator) pursuant to 42 U.S.C. § 1857f-6c(c) (1) (A), set certain national limitations on the lead content in gasoline as of January 1, 1975. Whether the Dec. 6, 1973 Regulations presently preempt Sections 1403.2-13.11 and 1403.2-13.12 is the question presented by plaintiffs' motion. By stipulation of the parties the Exxon (73 Civ. 1047) and the Getty et al. (73 Civ. 1093) cases have been consolidated for all purposes.


 On March 15, 1973 a hearing was held on plaintiffs' application for preliminary relief to declare Sections 1403.2-13.11 and 1403.2-13.12 null and void because they had been preempted by the promulgation of the January 10, 1973 federal regulations, and because they violated the commerce clause of the Constitution by discriminating against interstate commerce and by imposing extensive and unreasonable burdens on interstate commerce. By opinion and order of this Court of March 22, 1973 plaintiffs' application was denied. 356 F. Supp. 660.

 On March 26, 1973 this Court granted plaintiffs' application for a stay pending appeal and extended the stay on April 10, 1973. Without reaching the merits the Court of Appeals extended the stay conditioned upon the appellants' readiness to go to trial within 30 days of the filing of its opinion of May 17, 1973. *fn1" This case has been dormant since then because both parties expected action by either the State Environmental Administrator or the Federal Administrator to be forthcoming. In the meantime, we understand that the plaintiffs have been complying with the second step of the City's ordinance which requires that on and after January 1, 1972 the lead content for gasoline of all Octane levels be 1.0 grams per gallon. The City has continued to allow compliance at the 1972 reduction level.

 Relevant Statutes.

 §§ 1403.2-13.11 and 1403.2-13.12 of the local ordinance provide that the lead content and other physical characteristics of gasoline sold in New York City comply with certain specifications. *fn2"

 By the 1970 Amendments to the Clean Air Act Congress gave the Federal Administrator the power to set standards either for the purpose of protecting automobile pollution control devices or for the purpose of protecting the public health and welfare. See 42 U.S.C. § 1857-f-6c(c) (1) (A) and (B). *fn3"

 Section 211(c) (1) (A) of the Clean Air Act, as amended, 42 U.S.C. § 1857f-6c, provides for federal preemption of standards for fuel or fuel additives when the Administrator of the Federal Environmental Protection Agency has prescribed standards or has found that no control is necessary. *fn4" 42 U.S.C. § 1857f-6c(c) (4) (A) (i) bars local controls "if the Administrator has found that no control or prohibition . . . is necessary and has published his finding in the Federal Register." Since the Administrator has found otherwise, plaintiffs do not rely on this section for their preemption argument. 42 U.S.C. § 1857-6c(c) (4) (A) (ii) provides for preemption "if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such fuel or fuel additive, unless State prohibition or control is identical to the prohibition or control prescribed by the Administrator."


 The first regulations promulgated pursuant to § 1857f-6c(c) (1) (A) and (B) (January 10, 1973) implemented a lead control standard needed to protect automobile emission control devices. *fn5" On December 6, 1973 the Federal Administrator promulgated an amendment to Part 80, Chapter I, Title 40 of Federal Regulations. See Fed. Reg. 33734-41. These regulations, which set standards from the standpoint of protection of health, became effective January 7, 1974 and generally establish prospective controls applicable as of January 1, 1975. The controls require the lead content of gasoline be 1.7 gram per gallon after January 1, 1975 to 0.5 gram per gallon after January 1, 1979.


 To allow the degradation of the city's air by use of the federal preemption doctrine, when the applicability of that principle in this case is doubtful at best, would be a travesty on the people of New York City. Plaintiffs seek to create a hiatus in the effective control of air quality in New York City in contravention of logic, legal principles and legislative intent. This Court concludes, based upon the following, that the Dec. 6, 1973 Regulations do not preempt sections 1403.2-13.11 and 1403.2-13.12 until January 1, 1975.

 While this Court does not pretend to have any independent power to dictate the lead content of gasoline in New York City, it will not approve the dissolution of an otherwise valid local ordinance when no present conflict exists between it and federal standards. As noted above, 42 U.S.C. § 1857f-6c(c) (1) gives FEPA the power to "control or prohibit the manufacture, introduction into commerce, offering for sale, or sale of any fuel or fuel additive." Congress also provided that no state or subdivision thereof could enforce an emission control prescription not identical with the Federal Administrator's prohibition "applicable to such fuel or fuel additive . . ." 42 U.S.C. § 1857f-6c(c) (4) (A). Although the Dec. 6, 1973 Regulations as to lead content in gasoline are presently "effective", no control of lead content in gasoline is applicable until January 1, 1975. The defendant argues that it is only the existence of an applicable control that triggers preemption.

 Defendant argues that because the Federal Administrator has chosen to begin the phased reduction of lead content in gasoline on January 1, 1975 does not mean that he determined that no controls are necessary until that time. *fn6" Defendant further argues that there is nothing in the Act which prohibits the City from continuing to protect its citizens until federal regulatory controls commence. *fn7" Plaintiffs correctly argue that the lead content reduction schedule set forth in the Dec. 6, 1973 Regulations is set up to moderate the economic and technological impacts of the regulations. But the plaintiffs have already been complying with the standards required by the City's ordinance. The fact that low-lead gasoline is already being provided in New York City is significant in light of the purpose of the Act. The first purpose of the Act is: "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 1857(b) (1) (1970). Since the city ordinance has been in effect, New York City has made significant progress in improving the quality of its air. To allow New York City's air to be degraded now would violate the very purpose of the Clean Air Act. *fn8" The interpretation of the Act must be consistent with its purpose which "is based in important part on a policy of non-degradation of existing clean air." Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), aff'd by an equally divided Court sub nom; Fri v. Sierra Club, 412 U.S. 541, 93 S. Ct. 2770, 37 L. Ed. 2d 140 (1973).

 Congress provided that the Federal Administrator would promulgate regulations for fuel additives if he found that the emission products will endanger the public health and welfare. The regulations specifically found such and assert that,


"The scheduled reduction in the use of lead additives in gasoline to achieve a significant reduction in lead emissions from motor vehicles by 1978 is based on the finding that lead particle emissions from motor vehicles present a significant risk of harm to health of urban population, particularly to the health of city children." 38 Fed. Reg. 33734.

 Plaintiffs' argument that the Dec. 6, 1973 Regulations were intended to presently invalidate the City's ordinance is not consistent with such a finding. Indeed plaintiffs' arguments are not even supported by the December 6, 1973 Regulation itself which states that "[The] low-lead regulations will not go into effect until 1975 . . ." See 38 Fed. Reg. 33739 Dec. 6, 1973. *fn9"

 Therefore, in view of the facts before this Court, the application of the preemption doctrine in this case would be contrary to the Second Circuit's general rule that the preemptive effect of a federal act must be narrowly construed when the exercise of local police power serves the purposes of the federal act. See Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir. 1969). Not only has New York City's lead regulations been found to serve the purpose of the Clean Air Act, *fn10" but also nowhere in the statutory scheme can there be found Congressional intent to preempt the field of lead reduction for gasoline prior to actual federal control. *fn11" Thus plaintiffs have failed to show that there is an inevitable collision between the two schemes of regulation before January 1, 1975. *fn12" Indeed, the legislative history of the Clean Air Act demonstrates concern that state and local standards provide some measure of control of air pollution until such time as federal controls become applicable. *fn13"

 The preceding conclusions apply as well to New York City Administrative Code § 1403.2-13.12 which controls the volatility content of gasoline. Federal regulations presently do not control volatility standards. In fact, the federal controls are relevant to lead content in gasoline only. The federal regulations do not deal with volatility which is controlled in a manner unrelated to the control of the lead content of gasoline. See affidavit of William Shapiro, Assistant to the New York City Commissioner of Air Resources. There is no basis for a conclusion that the regulations promulgated in the Federal Register for December 6, 1973 by FEPA have preempted the City's volatility ordinance.

 Based upon the foregoing analysis of the Clean Air Act Amendments of 1970 and of the December 6, 1973 Regulations this Court concludes that plaintiffs have no support for their contention that the new federal regulations preempted and thus invalidated §§ 1403.2-13.11 and 1403.2-13.12 of New York City's administrative code. Therefore, plaintiffs' motion for summary judgment is hereby denied.

 So ordered.

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